State v. Kelly

• Decision Date: 17 August 1998
• Docket Number: No. 23788,23788
• Citation: 131 Idaho 774,963 P.2d 1211
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Thomas Edward KELLY, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1211

963 P.2d 1211

131 Idaho 774

STATE of Idaho, Plaintiff-Respondent, v. Thomas Edward KELLY, Defendant-Appellant.

No. 23788.

Court of Appeals of Idaho.

Aug. 17, 1998.

Finney & Finney, Sandpoint, for Appellant. John A. Finney argued.

Alan G. Lance, Attorney General; Catherine O. Derden, Deputy Attorney General, Boise, for Respondent. Catherine O. Derden argued.

LANSING, Chief Judge.

This is an appeal from the district court's denial of a motion to suppress evidence obtained by a law enforcement officer following his warrantless entry into the defendant's residence. The district court found the entry to be justified by exigent circumstances. Because we conclude that an officer may not rely on avoidable exigent circumstances of his own creation to justify a warrantless entry, we reverse the decision of the district court and suppress the evidence obtained as a result of the entry.

FACTS

At approximately 1:30 a.m. on December 9, 1996, Officer Bill Bitton of the Priest River Police Department was called to a residence to investigate a possible arson. When he arrived, Bitton discovered that there had been a fire in a tool shed that was located approximately 45 feet from the house. The shed was only slightly charred and was no longer burning, but a container of what smelled like gasoline, which was situated near the shed, was still ablaze. The homeowner told Officer Bitton that it was possible that a man named "Jason Kelly" was responsible for starting the fire. Shortly thereafter, Officer Bitton discovered footprints in the snow leading away from the fire scene. He followed the footprints to a nearby house. Once there, Bitton covertly looked into the darkened residence through windows in the front door. From that position, he saw a man standing in the living room wearing a winter coat and hat. Officer Bitton then knocked on the door. The man inside, who initially had his back to the door, glanced at the officer and then turned and walked further into the house. Bitton knocked again, and this time the knock was answered by a woman. She appeared to be confused when Officer Bitton asked if "Jason Kelly" lived in the house. Without answering Officer Bitton's inquiry, the woman turned and walked back into the house. Officer Bitton followed and shortly thereafter discovered the defendant, Thomas Edward Kelly, in a bedroom. Bitton questioned Kelly about his activities that morning and, after receiving two contradictory stories, conducted a pat down search of Kelly. The search revealed that one of Kelly's coat sleeves was soaked with gasoline. It also revealed that Kelly was carrying a spout from a gas can and a marijuana pipe in his coat pocket. Based on these discoveries, Kelly was arrested and was ultimately charged with arson in the third degree. I.C. § 18-804.

Kelly filed a motion to suppress all of the evidence discovered as a result of the warrantless entry into his home. At the hearing Officer Bitton offered no explanation for his election not to seek a warrant. The prosecutor argued, however, that the entry had been made with consent and, alternatively, was justified by exigent circumstances. The district court found that there had been no consent, and that finding is not challenged on appeal. The district court upheld the entry, however, on the ground that it was justified by exigent circumstances. Kelly thereafter entered a conditional plea of guilty to third degree arson, I.C. § 18-804, and was sentenced to serve a unified four-year prison term with two years determinate. As part of his plea, Kelly reserved the right to bring this appeal challenging the district court's denial of his motion to suppress.

ANALYSIS

In reviewing a trial court's disposition of a suppression motion, our standard of review is one of deference to the factual findings of the trial court unless they are clearly erroneous, while giving free review to the trial court's determination as to whether constitutional standards have been met in light of the facts found. State v. Curl, 125 Idaho 224, 227, 869 P.2d 224, 227 (1993); State v. Vasquez, 129 Idaho 129, 130, 922 P.2d 426, 427 (Ct.App.1996); State v. Pick, 124 Idaho 601, 603, 861 P.2d 1266, 1268 (Ct.App.1993). No factual issues were presented by Kelly's motion, and therefore we independently determine whether the uncontroverted facts show exigent circumstances that justified Officer Bitton in bypassing the warrant requirement.

In Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), the United States Supreme Court addressed the question of when a police officer's warrantless It is axiomatic that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. It is not surprising, therefore, that the Court has recognized, as "a 'basic principle of Fourth Amendment law[,]' that searches and seizures inside a home without a warrant are presumptively unreasonable."

entry into a private citizen's residence is justified. The Court stated:

Id. at 748-49, 104 S.Ct. 2091 (citations omitted). As the Idaho Supreme Court indicated in Curl, supra, "[t]his presumption is a strong one," and the government bears a "heavy burden" to show an exigent circumstance that necessitated immediate police action. Id. at 225, 869 P.2d at 225. The determinative inquiry is "whether the facts reveal 'a compelling need for official action and no time to secure a warrant.' " State v. Wren, 115 Idaho 618, 624, 768 P.2d 1351, 1357 (Ct.App.1989) (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978)). See also Curl, 125 Idaho at 227, 869 P.2d at 227; State v. Sailas, 129 Idaho 432, 434, 925 P.2d 1131, 1133 (Ct.App.1996). Circumstances that have been held to constitute an exigency include imminent risk of injury to persons or property, destruction of evidence or escape of a suspect. Wren, 115 Idaho at 624-25, 768 P.2d at 1357-58. WAYNE R. LAFAVE, 3 SEARCH AND SEIZURE, § 6.1(f) 274-277 (3d ed.1996).

The State urges that Officer Bitton's warrantless entry into Kelly's residence was necessary both to prevent Kelly's escape and to avoid the destruction or loss of physical evidence linking Kelly to the arson. We find the State's argument untenable, however, because any exigency that arose here was of Officer Bitton's own making. There was no threat of immediate destruction of evidence or flight by a suspect until Officer Bitton knocked on the front door of the residence, thereby alerting Kelly to the officer's presence. Until then, Officer Bitton could have retreated undetected and could have obtained a search warrant ¹ without fear that the suspect would be prompted to flee or to destroy valuable evidence.

Many other courts have held that a warrantless entry will not be justified by a police-created exigency, at least where the police conduct was unnecessary in view of available alternatives. For example, in United States v. Timberlake, 896 F.2d 592 (D.C.Cir.1990), the court considered the warrantless entry into an apartment that officers believed contained drugs. The officers were out of uniform and were disguised to look like potential drug purchasers. Although the officers had been observed standing in the apartment building hallway by persons who later entered the apartment, the court noted that there was no reason to believe their presence would have prompted the apartment occupants to destroy evidence until the officers knocked on the door and loudly...